My friend and former colleague, Steve Smith, has posted his latest paper, "Justice Douglas, Justice O'Connor, and George Orwell: Does the Constitution Compel Us to Disown our Past?" Here is the abstract:

Justice William O. Douglas's majority opinion in Zorach v. Clauson famously asserted that [w]e are a religious people whose institutions presuppose a Supreme Being. What did Douglas mean, and was he right? More recently, in cases involving the Ten Commandments, the Pledge of Allegiance and other public expressions and symbols, the Supreme Court has said that the Constitution prohibits government from endorsing religion. Can Douglas's Supreme Being assertion be reconciled with the no endorsement prohibition? And does the more modern doctrine demand that we forget, falsify, or forswear our pervasively religious political heritage? This essay, presented as the William O. Douglas lecture at Gonzaga Law School, addresses those questions.

In the Cutter case, the Justices unanimously (!!) upheld the Religious Land Use and Institutionalized Persons Act, rejecting the claim that the Act -- by mandating a more religion-friendly standard in accommodation-of-religion cases arising in prisons -- violates the First Amendment's Establishment Clause. Justice Ginsburg wrote the opinion for the Court, and emphasized -- correctly -- that the government may accommodate religion, even when such accommodation is not required by the Free Exercise Clause, without violating the no-establishment rule.

Justice Thomas's separate concurrence is particularly interesting, since he re-presents, and elaborates upon, his view that the Establishment Clause was primarily a "federalism" provision.

I just want to add one additional criticism to Rick's thoughtful dissection of the court ruling barring parents from exposing their child to Wicca given his attendance at a Catholic school. If a child's "confusion" arising from the conflict between the messages expressed in the home and school environments becomes a proper ground on which to define the child's best interests, religious folks of all stripes are in for a rough ride. I haven't read the opinion itself, but it seems that the logic could apply equally to Catholic parents sending their child to public school (or to a secular private school, if the voluntariness of the attendance decision undergirds the court's reasoning). A court could reason that exposure to Catholicism creates too much confusion for a child exposed to public school values, particularly in the areas of homosexuality and gender equality. Another reason to defend government neutrality as an (admittedly elusive) guiding ideal in this area.

The exploration on "Findlaw" of "charitable choice" programs -- and of "discrimination" by religious institutions that participate in such programs -- by Professors Brownstein and Amar continues here and here. (See here for a previous MOJ post on the subject). In the latest installment, Amar and Brownstein insist that there "is no secular purpose" that might justify permitting religious institutions that receive federal funds to "discriminate":

Religious discrimination in hiring with government funds raises other constitutional concerns as well. Charitable choice proponents acknowledge that religious providers cannot use public funds for religious instruction, proselytizing, or worship. If the content of state subsidized programs must be secular in nature, however, what purpose is served by allowing religious organizations to insist that all the employees staffing such programs must be of the same faith.

The answer is not obvious. . . . [I]t is not clear why the preferences of religious providers should be favored over the interests of their clients. Remember that religious providers accepting direct government grants are required to serve clients of all faiths or none. Whatever positive feeling Baptist employees enjoy in knowing that their co-workers share their faith may be outweighed by the discomfort Catholic or Jewish clients experience when they learn that no member of their faith would even be considered for employment in the program providing them public services.

That is, even if "charitable choice" programs themselves do have a "secular purpose" -- e.g., the more efficient and expansive delivery of social-welfare benefits -- there is no such purpose that attaches specifically to permitting "discrimination" in hiring by religious institutions that participate in this delivery.

It does not appear to me that Brownstein and Amar consider (what I regard as) a stronger "secular purpose" argument: There is a "secular", political-theory basis for thinking that it is important for mediating institutions (including religious institutions) to be permitted, to the greatest extent possible, to determine and preserve their distinct identities, even when (especially when?) those identities do not map neatly onto those of the government.

Amar and Brownstein go on to consider the argument that "[a]llowing religious discrimination in government funded programs . . . is no different that allowing secular nonprofit employers to hire only those individuals who share their ideological beliefs." They believe, though, that "religious organizations are not treated 'just like' secular organizations with regard to the way they can use government funds and in numerous other respects - because the Constitution recognizes that religious and secular organizations are not similarly situated and require different treatment." They conclude:

Put simply, in America we need people of different faiths to be able to live and work together on the basis of equal worth and mutual respect. Public sector and government-funded jobs need to be maintained as the cornerstone of religiously integrated work forces and communities.

Our point here is not that religious discrimination in hiring in government funded programs is inherently invidious. We do not think that it is. But it does prevent the kind of interactions that dispel stereotypes, promote empathy, and protect our hearts and minds from the taint of prejudice.

Moreover, and we can not make this point strongly enough, the fact that religious discrimination in hiring in government funded programs is not invidious or intended to be hurtful does not detract from or mitigate the very real harms it causes to excluded individuals and groups.

I've expressed before why this line of argument does not, in the end, persuade me. In any event, Amar and Brownstein are engaged, thoughtful, talented scholars, and are without question committed to what they regard as the good of the political community and to religious freedom.

Gregg Easterbook explores here (and here), in "The End of War?", the perhaps-surprising (and certainly under-reported) phenomenon that, during the last 15 years, "there have been steadily fewer armed conflicts worldwide" and that "it is possible that a person's chance of dying because of war has, in the last decade or more, become the lowest in human history." (It is a shame that, for many -- including me -- this news comes as such a surprise. As Easterbrook observes, "[T]he fact that we now see so many visuals of combat and conflict creates the impression that these problems are increasing.").

Easterbook spends some time considering the question, "what is causing war to decline?" The rise of more stable political institutions and democracies, the end of the cold war, the "rise of peacekeeping," etc., are all considered. I agree that "the spread of enlightenment" is the "riskiest" answer, given that "human nature has let us down many times before." Still, "swords really are being beaten into plowshares and spears into pruning hooks. The world ought to take notice."

It is interesting, though, that Easterbook does not seem to think that law has played much of a role. (Unless he means to include "law" in his discussion of the "global security system envisioned by the U.N. charter").

NYU law professor Noah Feldman has an excellent and provocative review, in the current issue of The New Republic, of two recent books on torture and Abu Ghraib. For me, Feldman's arguments about the importance of "American moral example" to the effort to bring democracy to the Middle East are particularly important because he is not (and was not) a Dean-esque war opponent, nor does he regard the democratization project as a disingenous or imperialistic ploy. (See his "What We Owe Iraq" (Princeton 2004) and "After Jihad" (2003)).

In his review, Feldman explores the "norm of international law" that "all sides are reciprocally obligated to treat prisoners of war and civilians under occupation humanely," the process and arguments by which lawyers in the Administration came to the conclusion (which Feldman does not endorse) that the Geneva Conventions did not apply to Al Qaeda and the Taliban, the possible connections between this process and these arguments, on the one hand, and the abuses at Abu Ghraib, on the other, and -- most important -- the inescapably moral content of the case for the reciprocity principle, and the rule of law in the context of war. He concludes:

This harm cannot be undone, and it is part of a broader set of harms that are still happening to Iraqis as a result of the way the United States has conducted its invasion and its occupation. We Americans are under a heavy duty to put an end to those harms by producing security in Iraq so that the democratically elected government can actually govern. The clock is ticking. The benefit to Iraqis of a stable government and freedom from Saddam's yoke will be very great, but it cannot outweigh every possible burden that they could ultimately suffer. The more Iraqis die, the longer insecurity reigns, the harder it will become to justify the invasion on the ground that it left the Iraqi people substantially better off than they would have been under Saddam.

It is a painful if occasionally obscure truth that the rightness or wrongness of our actions is sometimes decided by their consequences. That is why Aristotle raised the possibility that one could not judge a man entirely happy while he still lived: his children's fate would bear on how well he had constructed his life. We do not yet know whether the removal of Saddam--not generally, but in the way it concretely occurred--will have been justified. But we need not sit idly by and watch to see how it comes out. We are under a continuing and heavy duty to try to get things right--by following the rules that we have set, providing security and stability where little now exists, and treating others the way we wish to be treated ourselves. Those who believe that democracy can be established by American force in the absence of American moral example are deluding themselves, and Iraq, and us.

Eugene Volokh reports on a surprising case out of Indiana: According to a local newspaper, "[a]n Indianapolis father is appealing a Marion County judge's unusual order that prohibits him and his ex-wife from exposing their child to 'non-mainstream religious beliefs and rituals.' The parents practice Wicca, a contemporary pagan religion that emphasizes a balance in nature and reverence for the earth." Volokh reports, "[i]f the order is as reported, then it's a blatant violation of the Free Speech Clause (because it's a speech restriction), the Free Exercise Clause (because it singles out religion for special restriction), the Establishment Clause (because it prefers some religions over others, and requires the court to decide what's a 'mainstream' religion), and likely the Equal Protection Clause (because the order discriminates based on religion) and the Due Process Clause (because of the order's vagueness) as well."

Things get even more interesting: Apparently, the Domestic Relations Counseling Bureau argued that "[t]here is a discrepancy between Ms. Jones and Mr. Jones' lifestyle and the belief system adhered to by the parochial school. . . . Ms. Jones and Mr. Jones display little insight into the confusion these divergent belief systems will have upon (the boy) as he ages,' the bureau said in its report."

A few thoughts: First, why are the Jones's sending their son to a "parochial" school? Second, why did the pastor of the relevant parish admit a student whose parents' "practice Wicca"? Third, it is obviously unconstitutional, under the relevant doctrines, for a judge to order parents not to expose their child to their own beliefs -- particularly in a case like this one where, it appears, the parents do not disagree about the content of the beliefs to which they want to expose their children. Fourth -- and perhaps more controversially, those who criticize this case should not jump too quickly to criticize the Bureau's observation that the "confusion" the Joneses are imposing on their son might well not be in the child's best interests. (To be clear: The Joneses misguided parenting decisions do not, in my view, authorize this order). That is -- who are we kidding? -- it seems likely that by sending a young child to a parochial schools (which is, I hope, exposing the child to Christianity), and then practicing "Wicca" at home, the Joneses are not acting in the best interests of their son.

The bigger-picture question: This case brings to the surface three bedrock premises of present-day First Amendment doctrine, namely, that government officials lack the power and competence to inquire into the merits -- or the pedigree -- of religious traditions and beliefs; that the government is required to act "neutrally" with respect to any particular religion (that is, no particular "religion" may be treated worse than any other); and that "religion", within the meaning of the First Amendment, is an expansive concept, including pretty much any set of beliefs that are important to those who hold them. Are these premises convincing? Do they make sense? Do we embrace them because they are right, or because they are essential to a legal framework that, while not perfect, works pretty well in protecting religious freedom and limiting government, or for some other reason?

1. The official position on the Church--that is, the position of the magisterium--has long been that it is not "in principle" immoral for the state to impose the death penalty.

2. An important part of the justification for this position was that, in the words of the Angelic Doctor,

By sinning man departs from the
order of reason, and therefore falls away from human dignity, insofar as
man is naturally free and exists for his own sake, and falls somehow into the
slavery of the beasts, so that he may be disposed of according to what is
useful to others. . . . Therefore, although it be evil in
itself to kill a man who preserves his human dignity, nevertheless to
kill a man who is a sinner can be good, just as it can be good to kill a
beast. . . .

As E. Christian Brugger has explained:

"Though
the Catholic tradition has always affirmed the absolute immunity of innocent
human life from intentional attacks and destruction, moral culpability for
gravely wrong acts has traditionally been understood to forfeit that
status. The tradition is quite clear
that the lives of those who deliberately commit serious crimes are not
inviolable . . . .[Thomas] Aquinas says that
a grave sinner 'falls' from human dignity and may be treated as a beast, Pius
XII that a dangerous criminal, 'by his crime, . . . has
already disposed himself of his right to live.' In both cases, the life of the malefactor
through the malefactor’s own deliberate act(s) becomes violable."

Brugger goes on to explain, however, that “[t]his is not
the teaching of the [1997] Catechism [of the Catholic Church] or of [the pope’s 1995 encyclical]
Evangelium Vitae. In fact, John
Paul II emphatically states in the latter that ‘Not even a murderer loses
his personal dignity’ (no. 9).” The Church’s new position is that we human
beings cannot forfeit our inherent dignity, because God’s love for us—which is
the fundamental ground of our inherent dignity—is unceasing. The Administrative Committee of the United
States Conference of Catholic Bishops recently declared “each person’s life and
dignity must be respected, whether that person is an innocent unborn child in a
mother’s womb . . . or even whether that person is a convicted
criminal on death row.”

3. So, the man-becomes-beast justification--the one-can-forfeit-one's-dignity justification--is no longer available as a (partial) buttress for the traditional teaching of the Church that it is not in principle immoral for the state to impose the death penalty.

4. Indeed, the position of John Paul II--and of such traditionailst stalwarts as Germain Grisez, Joseph Boyle, and John Finnis--is that it is in principle immoral for the state to impose the death penalty. Yes, the position of John Paul II is more radical that the official position of the Church. JP II taught that to execute a human being
is to fail to respect “the inalienable dignity of human life”; it is to treat
him as if he lacks inherent dignity.

Why did John Paul
II teach that it is always morally forbidden to kill
any human being, innocent
or not, intentionally? Brugger has explained that to kill someone
intentionally is necessarily to want to kill him (though it is not necessarily to want to be in
the situation in which one feels constrained to want to kill him), and to want
to kill a human being, no matter what “beneficial states of affairs [killing
him] promises, . . . is contrary to the charity we are
bound to have for all.” By contrast, to kill someone with foresight
but not intent is not necessarily to want to kill him; indeed, it may be that
one would rejoice if one’s action did not result in killing anyone, even if it
is virtually inevitable that one’s action will yield death.

So, according to
John Paul II, as interpreted by Brugger, one may never kill a human being
intentionally: “[T]he intentional destruction of a person’s life” is
necessarily a failure of love; it is necessarily “contrary to the charity we
are bound to have for all”; as such, it is necessarily a failure to respect
“the inalienable dignity of human life.” To respect the inalienable dignity of a human
being—to treat a human being as if he has inherent dignity, not as if he lacks it—is to treat him lovingly; to fail to treat him
lovingly—to act “contrary to the charity we are bound to have for all”—is to
fail to respect his inherent dignity. (“[W]hereas ‘Thou shalt love thy neighbour as thyself’ represents the
Greek of the Septuagint (Leviticus 19:18) and of the New
Testament, the Hebrew from which the former is derived means rather ‘You shall
treat your neighbor lovingly, for he is like yourself.’”) Because to execute a human being is
necessarily to kill him intentionally, one may never execute a human
being. For government to execute a human
being is necessarily for it to treat him as if he lacks inherent dignity. According to this “unconditionalist”
principle, there are no
conditions in which it is morally permissible to execute a human being—or, more
generally, to kill a human being intentionally. The moral impermissibility of such action is unconditional: No matter
what conditions obtain—even if, for example, in a particular society capital punishment
has been shown to have a significant deterrent effect—to kill a human being
intentionally is beyond the moral pale.

5. So, make your choice: (1) The official position of the Church, which Brugger argues (and I agree) can no longer be justified. (2) John Paul II's radical position. (3) Some other position.

But what one should no longer do is proceed in blissful ignorance of the fact that the official position of the Church and the position of John Paul II are not the same.

If I had to choose between the two positions, I would choose JPII's position, which in my judgment has an integrity that the official position of the Church utterly lacks, now that the man-becomes-beast rationale has been excommunicated.

[For citations and fuller argument, which I provide in my recent essay on Capital Punishment and the Morality of Human Rights, click here.]_______________

William Saletan accuses President Bush of hypocrisy in opposing stem cell research even though it supposedly would save lives but supporting the death penalty on grounds that it saves lives (presumably through either general or specific deterrence). Over on my personal blog, I offer some thoughts on why Saletan has a point, albeit less of one than he believes. Or, perhaps more precisely, I offer some thoughts from Avery Cardinal Dulles that I think shed useful light on the issue.

I'm more than ready to criticize the Bush administration for being dogmatic, overconfident, and arrogant in waging the "war on terror." But the anti-Bush arguments in the "Petitioner or Prophet?" op-ed that Michael P. posted seem pretty nit-picking to me. Let's set aside how much one can glean from the number of references to God in State of the Union addresses; let's focus on the nature of the references. Professor Domke and Mr. Coe characterize Bush's references as "declarations of divine wishes," reflecting a "certainty about God's will [that] is troubling" -- while other other presidents' references have been simply more innocuous "requests for divine guidance."

First, what is the divine will that the writers think it's troubling for Bush to assert? It's "that freedom is the right of every person and the future of every nation," and that this "is God's gift to humanity." Ah, right. Bush arrogantly brushes aside the powerful counterargument that God is against freedom and doesn't want all persons to have it. And that counterargument is found -- where exactly?

Second, what's the big difference between Bush's statements and those of FDR and JFK that the writers approve? FDR treats freedom as just as bedrock and unassailable a value as Bush does. (Plus, I'll eat my hat if Bush hasn't also essentially "requested divine guidance" at various times in his speeches.) If anything, one could argue that Bush's phrasing is facially more humble, at least than JFK's was. Bush says that freedom comes from God, not from America. Kennedy spoke of freedom, and America's unique commitment to it ("the burden and glory"), and then enlisted God in aid of that specially American endeavor, without asking first whether God was in favor of it.

Saying (as Bush does) that a political value comes from God, not from you or your own nation, can reflect or produce arrogance (since the value is of divine origin, there are no limits to what can be done to pursue it). But it might also reflect or produce humility (we're not the source of all goodness; since the origin of that value is higher than any of us, it stands in judgment of our own actions as well). I don't think that one can tell which of these two is at work in a particular case just by looking at the words. And thus I don't think it's per se troubling to invoke "God's will" as the source of a political value. Dr. King and other civil rights leaders didn't say "We strive for freedom, and hope that God will guide us." They said "Freedom is God's will"; and their appeal, far from being "troubling," was deeper and more powerful for it.

To reiterate: There's a strong (even airtight?) case that the administration has been pervasively arrogant in prosecuting the war on terror. But:

(1) I doubt that all or even most of that arrogance comes from religious certainty (does anyone think Dick Cheney's or Donald Rumsfeld's overconfidence about policing Iraq came from spending hours on their knees before God?); and

(2) The case for arrogance should be made on the basis of the administration's actions, not merely its invocation of God in support. Perhaps Professor Domke makes the fact-based case in his book; but the op-ed seems to me to reflect an excessive focus on interpreting the minutiae of rhetoric.